Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based upon testimony from a small subset of the putative Respondents, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent Respondents

QUESTIONS PRESENTED On June 21, 2017, the Sixth Circuit affirmed a Sixth Circuit panel holding that a handful of employees may litigate a collective action for overtime wages under the Fair Labor Standards Act on behalf of hundreds of employees across the country, despite wide variations in the theories of liability asserted by the plaintiffs. Expressly disagreeing with a decision of the Seventh Circuit on nearly identical facts, the panel held that the Act is “less demanding” than Fed. R. Civ. P. 23’s standard for certifying class actions and is satisfied by common legal theories “even if the proofs of these theories are inevitably individualized and distinct.” The panel also rejected the Seventh Circuit’s view, grounded in due process, that unless the sample is statistically representative, collective actions cannot be tried based upon testimony from a sample of class members handpicked by the plaintiffs’ counsel. Finally, without any jury finding that the witnesses who testified were in fact representative, and in conflict with Fifth and Second Circuit authority, the panel held that the court could take the question of damages away from the jury. The Sixth Circuit, however, reversed and remanded for a recalculation of damages. After a subsequent appeal, the Sixth Circuit found that its remand was limited in scope and held that the District Court, inter alia, correctly declined to revise its earlier decision to enter an aggregate judgment. The questions presented are: 1. Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action ii to be certified and tried to verdict based upon testimony from a small subset of the putative Respondents, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent Respondents. 2. Whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment and improperly resulted in an improper aggregate judgment. 3. Whether the District Court was authorized to enter an aggregate judgment in spite of the fact that recovery under the Fair Labor Standards Act is compensatory in nature and should be entered in individualized judgments.